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Tight deadline for lawyers to respond to panel review

17 Mar 2023

| Author: Reweti Kohere

Members of the legal profession are urged to provide feedback on how they should be regulated and represented following the release of a raft of “watershed” recommendations from an independent panel, including the creation of a new, independent watchdog.

They have just two months to have their say.

Commissioned a year ago by the New Zealand Law Society (NZLS) to undertake a once-in-a-generation, wide-ranging review of the statutory framework for legal services, an independent review panel has scheduled information sessions on March 28 and April 3 to talk practitioners through the main recommendations and answer questions.

With the NZLS board and council considering the report before preparing a response for the Minister of Justice by the end of July, the profession has until the end of May to make further submissions.

An NZLS  spokesperson confirmed the board and council’s response will be passed on to the government to facilitate the shape of any future legislative reforms.

“Any legislative change wouldn’t happen quickly,” said NZLS President Frazer Barton. “We will work with government to understand the likelihood of legislative change as we strive towards our commitment to being a best practice, modern regulator and peak national representative body for the legal profession.”

The “very substantial” report has given the profession a lot to consider and “significant and complex implications” would flow from the recommendations, Barton said. But progress had already been made in line with the panel’s conclusions and the law society would continue to make headway.

“This independent review is an important step forward to outlining the potential changes that are needed for the legal profession in the future, but it is going to take all of us working together to achieve the differences that are needed.”

‘Strong case’

The review panel, comprised of chair Professor Ron Paterson and members Jane Meares and Professor Jacinta Ruru (Ngāti Raukawa, Ngāti Ranginui, Ngāti Maniapoto), concluded the position of NZLS as regulator and as a representative organisation was no longer tenable.

“The conflict between these two competing functions is undermining the efficiency and effectiveness of the law society as a regulator and eroding the trust of lawyers in their membership body,” Paterson said.

There was a “strong” case for a new, independent regulator, whose proposed governance structure of four lawyer members and four public members, with one of the public members as chair, would “clearly signal a clean break with the past and a shift to regulation in the public interest”, Paterson said.

As a result, the law society would lose its regulatory function, instead continuing to act as a national representative body with a single governance layer. The recommendation flies in the face of strong opposition from the profession and many calls, including from ADLS’ committees, for the profession to maintain the ability to regulate itself.

The panel has also recommended reforming the “slow, adversarial” complaints process, including Te Tiriti of Waitangi in an improved regulatory framework, specifying regulatory objectives to guide the regulator, empowering the watchdog to oversee law firms as well as individual lawyers, giving lawyers and non-lawyers footholds in new business arrangements and encouraging more progress on diversity and inclusion.

Ruru said improving the profession’s culture would take much more work.

“There is a lack of gender equality in many senior positions, a striking lack of ethnic diversity across the profession and barriers for lawyers with disabilities. Coupled with the well-documented issues of harassment and bullying, it is no surprise we heard from many lawyers about the urgent need for change.”

Foreshadowed loss

Feedback on the report has so far been mixed. Auckland barrister Warren Pyke, in an opinion piece for LawNews, said the report represented a “watershed moment” for the profession. The foreshadowed loss of self-regulation was almost inevitable, based on the terms of reference, the backgrounds of the panel members and the law society’s “act of self-immolation” in commissioning the report.

But the likely loss should give the profession pause for considerable thought, Pyke said. Based on his experience with law society governance, “I see how the regulatory system works up close. It has faults, but it also has a lot going for it.”

The report could and should ignite debate. “Law change in a democracy works best when it is subject to a process of robust democratic disputation, rather than supine obedience to a party line,” Pyke said.

For instance, it wasn’t enough for the panel to “merely pronounce” that Te Tiriti should hang over the regulatory regime, “when the profession at large not only has not embraced such a thing, but won’t understand what it entails.

“Some may see this proposal as a radical departure from orthodoxy and become alarmed. This proposal requires a sensitive and complex conversation, including how tikanga might fit in a meaningful way into a lawyers’ regulatory regime,” Pyke said.

Not far enough

Te Hunga Rōia Māori co-presidents Renika Siciliano (Waikato, Ngāti Maniapoto) and Baden Vertongen (Ngāti Raukawa) told LawNews they would’ve gone further than a majority of the panel on several recommendations, including whether to add regulatory objectives covering the use of te reo Māori and the preservation of tikanga, and including Te Tiriti in the fundamental obligation to uphold the rule of law.

The report noted Paterson and Meares’ belief that a less expansive list of regulatory objectives was better, in contrast to Ruru who advocated for specific references.

“The report is silent on key structural issues relating to the representative function of NZLS in any new model,” the co-presidents said. “We encourage NZLS, and the profession as a whole, to move towards the type of model suggested by the panel in order to best support all members of the profession and the clients who depend on us.”

Te Hunga Rōia Māori agreed that fundamental change is needed as the profession’s current model of regulation and representation is fundamentally flawed. The co-presidents said: “The report shows that we are not alone in this and that the current system is outdated, unrepresentative, and unresponsive.”

The Aotearoa Legal Workers’ Union (ALWU) also didn’t think the proposed changes went far enough, particularly in addressing issues within the profession of overwork and burnout. ALWU co-president Irenë McGlone told Capital Letter: “There is a widespread expectation that legal workers must consistently work late into the evening and on weekends, generating income for their employer but without being properly paid for those hours in return.” Paid overtime was “essential to changing this culture to ensure that the law is a safe and inclusive profession to work in,” McGlone said.

The New Zealand Bar Association largely supported the recommendations, although remained concerned that any proposed reforms did not  undermine the fundamental obligation of lawyers to uphold the rule of law.

Gibbs Mills Livingstone Lawyers partner Sam Khalesi said the report was “disappointing but not at all unexpected”, taking issue with the proposed embrace of “corporatisation”, or opening the profession up to accountants and other non-lawyer professions.

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